Does Criminal Intent Matter Anymore?

Friday, October 21, 2016

For those committed to criminal justice reform, issues like mandatory minimums, skyrocketing prison populations, and civil asset forfeiture are the most commonly addressed subcategories. However, there is one topic that often gets left behind: Criminal intent, the legal protection ensuring you won’t be sent to prison for accidental crimes.

Though “criminal intent” is a primary factor in determining whether or not someone is guilty, the government is not always obligated to prove intent.

The issue is formally known as mens rea, which is Latin for a “guilty mind.” It is a legal principle derived from the phrase, “actus reus non facit reum nisi mens sit rea,” which literally means, “the act is not culpable unless the mind is guilty.” In the United States legal system, mens rea requires prosecutors to provide proof that the accused actually intended to commit a crime.

The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.

The reasoning behind mens rea is to protect people who may have unknowingly or accidentally committed a crime. For example, when three-time Indianapolis 500 winner Bobby Unser got caught in a blizzard while snowmobiling in the Colorado Mountains in 1996, he had no idea that he had broken any laws. However, after leaving his snowmobile behind and braving the treacherous conditions to find his way back to shelter, Unser received some surprising news. As reported in an article by Real Clear Policy:

After recovering, Unser contacted Forest Service personnel to locate his snowmobile. He subsequently found out that federal officials were charging him with operating a motorized vehicle inside a National Wilderness area — where Unser had driven the machine inadvertently during the blizzard — a misdemeanor that carries up to a $5,000 penalty and six months in prison.

Unser was unbelievably convicted of the offense, because the law was vague as to whether the government had to prove he had gone into the prohibited area intentionally. Unser will have a criminal record for the rest of his life.

Though “criminal intent” has long been seen as one of the primary factors in determining whether or not someone is guilty, the government is not always obligated to prove intent. As was mentioned in the Unser story, when laws are written vaguely and without specific mention of a mens rea requirement, the government is free to prosecute defendants even if they lacked reasonable knowledge that they were committing a crime.

The legislature can, of course, draft a statute that lacks any criminal intent requirement. These crimes are known as “strict liability” since only the act itself (actus reus) is necessary to be proven in order to secure a conviction.

There are nearly 5,000 crimes on the federal books, and over 300,000 implementing regulations.

But too many crimes exist for which Congress never included (or forgot to include) a criminal intent requirement. This means that as the criminal code continues to grow, situations like the one Bobby Unser faced could become more common.

There are nearly 5,000 crimes on the federal books, and over 300,000 implementing regulations. With the constant growth of government, it is very likely that hundreds of laws lack crucial intent requirements.

In a recent article for the Washington Times, Senator Orrin Hatch (R-UT) voiced his concern over two criminal justice reform bills, each waiting to be brought to the floor of the House and the Senate, for neglecting to include a mens rea requirement. His concern over the lack of a mens rea requirement is understandable. Without intent, can someone really be found guilty of breaking a law they did not know existed?

This issue has bipartisan support. In a hearing about regulatory crimes, Representative John Conyers (D–MI) argued:

First, when good people find themselves confronted with accusations of violating regulations that are vague, address seemingly innocent behavior and lack adequate mens rea, fundamental Constitutional principles of fairness and due process are undermined…. Second, mens rea, the concept of a “guilty mind,” is the very foundation of our criminal justice system.

We should seek a criminal justice system that respects the rule of law and does not create an environment where accidental crimes can take place.

Brittany is a senior writer for the Foundation for Economic Education. Additionally, she is a co-host of Beltway Banthas, a podcast that combines Star Wars and politics. Brittany believes that the most effective way to promote individual liberty and free-market economics is by telling timely stories that highlight timeless principles.